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PETITIONER: TIRUMALA TIRUPATI DEVASTHANAMS

       Vs.

RESPONDENT: K.M. KRISHNAIAH

DATE OF JUDGMENT:       02/03/1998

BENCH: S.P. BHARUCHA, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT: Present              Hon’ble Mr. Justice  S.P. Bharucha              Hon’ble Mr. Justice M.Jagannadha Rao Soli Sorabjee,  Sr. Adv.,  K.Ram Kumar,  Ms. Asha  G.  Nair, Advs. with him for the appellant A.T.M. Sampath, Adv. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: M. JAGANNADHA RAO. J.      The   Appellant    (Tirumala   Tirupati   Devasthanams, hereinafter called  the T.T.D.  is the defendant in the suit O.S. No. 51 of 1968 filed by the respondent-plaintiff in the Court of  the the  District Munsif at Tirupati. The suit was filed by  the respondent  for grant  of permanent injunction against the  TTD in  respect of  AC 2.29 of land in Tirumala Hills.      The trial  Court dismissed  the suit  holding that  the plaintiff had  proved neither  title nor possession and that the plaintiff  who  had  trespassed  into  the  property  in October, 1967,  was not  entitled  to  permanent  injunction against the true owner, of the property, namely, the TTD.      The plaintiff  filed an  appeal and during the pendency of the appeal, the plaintiff had temporary injunction in CMP 319 of  1969 in  his favour  only  upto  28.8.1969  and  was dispossessed on  30.8.1969 by  the TTD.  The plaintiff  then filed an  application CMP  No 289  of 1970  on 25.7.70 under order 6  Rule 17  CPC (beyond  6 months  from  the  date  of dispossession) for  amendment of  plaint and  converted  the suit into  one for  possession. The appellate Court too held that the  plaintiff had  proved neither title nor possession to the  suit property.  The appeal was dismissed by judgment dated 5.8.1982.  We may  state here  that both courts relied upon the judgment of the Sub-Court, Chittoor dated 15.6.1942 in an  earlier suit  filed by the TTD against the Hathiramji Mutt in  1937 (O.S. 51/1937) wherein that Court had declared the TTD’s  titled to  this property. Such title was declared on basis  of title  deeds of  1887. Evidence  of the Deity’s possession from  1846 was  adduced  in that suit. Subsequent to the  decree dated  15.6.1942, the TTD filed E.P. No. 1 of 1946 against Hathiramji Mutt and obtained delivery under Ex.

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B6 delivery receipt on 12.1.1946 through Court.      After failing  in both Courts, the respondent plaintiff preferred second  Appeal No  781 of  1982 in the High Court. The learned  Judge allowed  the  appeal  by  judgment  dated 24.4.1987 and  passed a  decree for  possession in favour of the plaintiff  observing that  the suit was to be treated as one based  on ‘possessory  title,  and  that  the  plaintiff dispossessed on  30.8.1969 could recover possession from the appellant TTD unless the TTD proved title. The learned Judge held that  the oral evidence adduced by both sides was to be rejected and  that the TTD’s title in respect of this extent of land  of Ac  2.29 stood  "extinguished" inasmuch  as  the delivery  receipt   dated   12.1.1946   showed   that   some ‘encroachers’ were in possession of this piece of land. Such a finding  as to  extinguishment of  plaintiff’s  title  was given for the first time in second Appeal, even though there was no  such issue  in the  courts below.  Against the  said judgment  in   Section  Appeal,   decreeing  the   suit  for possession, this Civil Appeal has been preferred by the TTD.      Learned  senior  counsel  for  the  TTD,  sri  Soli  J. Sorabjee contended  before us  that it  was not  open to the second Appellate  Court to  reappreciate evidence and reject the oral  or documentary  evidence which was accepted by the courts below  and that  it was also not open to the Court in Second  Appeal   to  hold   that  the   TTD’s  title   stood "extinguished" when  there was  no such  issue framed in the lower courts.  If the  suit was  to be  decided only  on the basis of  possessory title,  as even  accepted by the Second Appellate Court  and if section 6 of the Specific Relief Act 1963 was, even according to the said court, not available to the plaintiff,-  because the  application for  amendment  to convert the  suit into  one  for  possession  was  filed  on 25.7.1970, beyond  6 months  from the  date of dispossession i.e. 30.6.69,  -the suit  for possession  was liable  to  be dismissed as  the TTD  had proved  titled and the said title was subsisting and was never extinguished.      On the  other hand,  it was  contended  by  Sri  A.T.M. Sampath, learned  counsel for  the respondent-plaintiff that the earlier judgment in OS 51/1937 - Sub-Court, Chittoor was rendered in  a suit  by the  TTD against the Hathiramji Mutt and that  the present  plaintiff was not a party thereto and hence any declaration as to title in favour of the TTD given therein in  respect of  the suit property was not admissible or binding  in the  present suit. He also contended that the delivery receipt  Ex.B6 dated  12.1.1946 in the earlier suit OS 51/1937  in favour  of the  TTD showed  that the  TTD was given possession of 0.06 cents in S.No. 669/2 and 0.39 cents in S.No.669/1  only and  that so  far as  Ac 2.29  in S. No. 669/2 was  concerned, it was stated in the said receipt that extent of  land was  being cultivated  by ‘encroachers’. He, therefore, contended  that TTD  was not put in possession of the suit  property  on  12.1.1946.  According  to  him,  the plaintiff’s  family   from  the   time  of  his  grandfather Chengaiah was in possession of the Ac 2.29 for over 60 years right up  to the filing of the present suit on 14.2.1968 and hence the  learned Judge  was right  in holding  that  TTD’s title to  this extent  of Ac  2.29 stood  ‘extinguished’. It stood extinguished,  in any  event,  between  12.1.1946  and 30.8.1969 when  TTD dispossessed  the plaintiff. The suit of the plaintiff,  as amended,  based on  possessory title  was therefore rightly decreed by the second Appellate Court. The plaintiff who was dispossessed on 30.8.69 could, even if the 6 months  period prescribed  in section  6 of  the  Specific Relief Act  expired, maintain  a  suit  for  possession  and recover possession on the basis of possessory title, as held

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by  this  Court  in  Nair  Service  Society  Ltd.  Vs.  K.C. Alexander [AIR  1968 S.C.  1165], which  judgment was relied upon by the learned Judge in the High Court. In view of the above contentions, the following three points arise for consideration:      (1) Whether  the judgment  in OS 51 of 1937, Sub-Court,      Chittoor dated  15.6.1942 declaring  the title  of  the      TTD, was admissible and could be relied upon by the TTD      as evidence  in the  present case,  even though present      plaintiff was not a party to OS 51 of 1937?      (2) Whether  it was  open to the Second Appellate Court      to reappreciate  the evidence  and hold  that the  oral      evidence adduced  by the parties was not acceptable and      that in  view of the recitals in Ex B6 delivery receipt      dated 12.1.1946,  the title of the TTD was to be deemed      ‘extinguished’. and  whether this  could be  done  when      there was no such issue raised in the courts below?      (3) Whether, in case we should hold on Point 2 that the      Second Appellate  Court could  not hold  that the TTD’s      title stood  extinguished, the  decree  for  possession      based on  possessory title  as granted  by  the  Second      Appellate Court, could be sustained? Point 1:      It was  argued by the learned counsel for the plaintiff respondent that  the earlier  judgment in  O.S. 51  of  1937 dated 15.6.1942  was rendered  in favour  of the TTD against Hathiramji Mutt, that plaintiff was not a party to that suit and hence any finding as to TTD’s title given therein is not admissible as evidence against the present plaintiff in this suit.      In our view, this contention is clearly contrary to the rulings of this Court as well as those of the privy Council. In Srinivas  Krishna Rao  Kango vs.  Narayan Devji  Kango  & Others [AIR  1954 SC  379], speaking on behalf of a Bench of three learned  Judges of  this Court,  Venkatarama Ayyar, J. held that  a judgment  not inter  parties is  admissible  in evidence under section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under sections 40 to 44 of  the Evidence  Act were not admissible in evidence was expressly rejected.  Again B.K.  Mukherjea, J.  (as he  then was) speaking on behalf of a Bench of four learned Judges in Sital Das  vs. Sant Ram & Others [AIR 1954 SC 606] held that a previous  judgment no  inter  partes,  was  admissible  in evidence  under   section  13  of  the  Evidence  Act  as  a ‘transaction’ in  which a  right to  property was ‘asserted’ and ‘recognised’.  In fact,  much earlier, Lord Lindley held in the  Privy Council in Dinamoni vs. Brajmohini [1902] [ILR 29 Cal.  190 (198) (PC)] that a previous judgment, not inter partes was  admissible in  evidence under Section 13 to show who the  parties were,  what the  lands in disputer were and who was  declared entitled  to retain them. The criticism of the judgment  in Dinamoni  vs.  Brajmohini  and  Ram  Ranjan Chakerbati vs.  Ram Narain  Singh [1895 ILR 22 Cal 533 (PC)] by sir  John Woodroffe  in his commentary o the Evidence Act (1931, P  181) was  not  accepted  by  Lord  Blanesburgh  in collector of  Gorakhpur vs.  Ram Sunder [AIR 1934 PC 157 (61 IA 286)].      For the  aforesaid reasons, we reject the contention of the learned  counsel for  the respondent-plaintiff  and hold that the  TTD could  rely on  the judgment  in OS  51/37  as evidence to  prove its title in regard to the suit property, even though  the present  plaintiff was  not a party to that suit.  Point   No.  1   is  held   accordingly  against  the respondent.

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Point 2:      It  was  argued  for  the  appellant  that  the  Second Appellate  Court  could  not  have  rejected  the  oral  and documentary evidence  which was accepted by the Courts below on the  question of  possession. It  was also argued that in Second Appeal,  it was  not open  to the  High Court to hold that the  title of  the TTD  stood ‘extinguished’ when there was no such issue raised in the courts below.      It is  obvious that  under section  100 CPC  in  Second Appeal it  was not  open to  the Second  Appellate Court  to reappreciate the  evidence and  reject the evidence accepted by the  courts below  on the  question of possession. We may here refer  briefly to  the reasoning of the trial court and of the first appellate court on the question of possession.      The respondent-plaintiff,  in proof  of his  contention that his  family from his grandfather’s Chengaiah’s time for over 60  years was  in possession of this property, examined himself as  PW1 and  four other  witnesses of PW2 to PW5. As pointed out  by the  learned District  Munsif, the plaintiff did not  produce a  scrap of  paper - either the cultivation accounts maintained  by the  government (called the Adangals or Rule  10(1) and  10(2) accounts),  or any tax receipts in token of  payment of land revenue. Now the TTD auctioned the lease hold interest in this property annually. This land was leased to  PW2 for the fasli year 1372 (1962 to 1964) and to PW3 for  the fasli year 1375 (1965-66). These leases  would, in fact,  be proof  of TTD’s  possession during these years, i.e. after  it took  delivery  on  12.1.1946  under  Ex  B6. Curiously the  plaintiff examined  these tenants on his side to say  that the  plaintiff was  in possession  during  this period and  not the  TTD. The  evidence of  PWs 2 and 3 was, upon a  through discussion, rejected by the learned District Munsif as well by the first appellate court. The evidence of the watchman  PW4 and  of the milk vendor PW5 put forward by the plaintiff  was also rejected by the said courts for good reasons. At  the same  time, the  said Courts  held that the plaintiff had  trespassed into the suit property in October, 1967 when one P. Subrahmanyam, another lessee of the TTD for the year  1967-68 was in possession pursuant to auction held by the  TTD in that year. The trial court held that the suit land was known as Kaki Chowk Thota and was never known after the plaintiff’s paternal grand father as Chengaiah Thota. It was the  Nandavanam of the Deity. The Court pointed out that the plaintiff  had deliberately  not mentioned  the S.Nos of the suit  land in  the plaint and tried to confuse the issue by stating  at the  time of  evidence that said land bore S. No. 592  and not  669. The Court held that S.No. 592 was the old S.No.  for the  same land now covered by S.No. 669/1 and 669/2. The Court observed that inasmuch as the TTd had filed a  criminal   complaint  against   the  plaintiff   alleging trespass, the  plaintiff, with  a view  to ward off criminal proceedings, filed  the present  suit for injunction one day later.      In the  Courts below,  the TTD  had relied  upon Ex. B6 delivery receipt dated 12.1.1946, the oral evidence of DWs 1 to 5,  and the  governmental survey  report of 1914. It also relied upon  the annual  auctions of the lease-hold interest of these  lands by  the TTD  to PW2, PW3 and P. Subrahmanyam during 1962  to 1967,  till plaintiff  trespassed  into  the property in  October, 1967.  The TTD  filed the  cultivation accounts Ex.  B8, Ex.  B9 for  S.No. 669 (old S.N. 592), Ex. B10 list  of kist  paid for  the lands of TTD for fasli 1378 (1968), Ex.  14, the  Muchalka dt.  26.6.1967  executed  for 1967-68 by  P. Subrahmanyam  who was  the highest bidder for the year 1967-68. The said oral and documentary evidence was

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accepted by  the Courts  below as  proof of TTD’s possession after 12.1.1946  and upto  October, 1967  when the plaintiff trespassed into  the property.  When the trial court and the first appellate  court have  thus based  their finding as to possession on  the above  material,  the  learned  Judge  in Second Appeal was not right in stating that:      "No reliance  can be  placed upon  the interested  oral evidence  adduced   by  the  parties  in  support  of  their respective claims."      Nor could  he state,  in the face of the above evidence in the  case, the TTD had not filed a "single deed of lease" in support  of its  claim for  possession. We have on record the auction  notices issued  by the  TTd for  the lease-hold rights.  They  were  marked  on  plaintiff’s  side  when  he examined PW2  and PW3.  Ex. A3 dt. 13.6.65 was issued by the Executive Officer, TTD, Ex. A4 dated 6.8.62 in the duplicate challan issued  to PW2  for Fasli  1372  and  Ex.  A5  dated 20.7.68 is  the receipt  issued to  PW2 by  the TTD.  Ex. A6 dated 10.11.65  is the  receipt for leasing Kaki Chowk Thota for Fasli  1375 and Ex. A7 contains the proceedings relating to confirmation of sale of lease-hold rights for Fasli 1375. TTD produced  Ex. B14 dated 26.7.67 as the Muchalka executed by the  lessee P.  Subrahmanyam for  the year  19067-1968 in favour of  the TTD.  In the  face of the above material, the learned Judge  erred in stating that the TTD did not produce any documentary  evidence to  prove  its  leases  after  the delivery under Ex. B6 on 12.1.1946.      The plaintiff’s  case that he and his predecessors were in possession  for more  than 60  years was  therefore found against him.  If that  be so,  the plaintiff could not claim that the  must be  taken to  be  one  of  the  ‘encroachers’ referred to  in Ex  B6  delivery  receipt  dated  12.1.1946. Therefore, there  was no scope for the learned Judge to hold that  the  plaintiff  was  in  possession  before  or  after 12.1.1946 so  as to  prescribe title  by adverse  possession against the  TTD resulting in extinguishment of the title of the TTD.  In any  event; when  there was  no  issue  on  the question of  adverse possession  in the  Courts  below,  the Second Appellate  Court could  not, for the first time, have giving     a  finding  that  the  title  of  the  TTd  stood extinguished. The  following finding  in Second Appeal that, for the TTD:      ".....no physical possession of the      property    was    obtained    till      12.1.1946   or    thereafter.   The      defendants’  title   to  the   suit      property was thus extinguished"      Is, therefore,  unsupportable. We accordingly set aside the same  and hold  that the  TTD continues to have absolute title to the property of Ac 2.29 in S.N. 669/1 and 669/2 and that its  title  never  stood  ‘extinguished’.  Point  2  is decided accordingly  against the  plaintiff and in favour of the appellant. Point 3:      We have  already state  that after  the plaintiff filed the  first  appeal,  the  temporary  injunction  expired  on 28.8.1969  and   the  TTD   dispossessed  the  plaintiff  on 30.8.1969. The plaintiff did not claim any relief within six months under  Section 6 of the specific Relief Act, 1963 but applied  on   25.7.1970,  beyond   6  months  from  date  of dispossession, for  amendment of  plaint converting the suit into one  for possession.  The point is, if the title of the TTD to  the suit  property, as  held by  us on  Point 2, was never  extinguished   but   continued   to   be   absolutely subsisting, whether  the plaintiff,  claiming to be a person

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dispossessed  by   the  TTD   on  30.8.69,   could   recover possession? In  our opinion,  the judgment  of this Court in Nair Service  Society Ltd.  vs. K.C.  Alexander [AIR 1968 SC 1165] answers  this point  squarely. The  facts of  the case before us  and in  that case are quite close but for a small distinction, to  which we  shall refer  at  the  appropriate stage.      In that  case the  respondent was  the plaintiff and he was dispossessed.  He sued  for possession  but the suit was filed more  than one  year after  dispossession.  Under  the specific Relief Act, 1877 section 9 permitted a dispossessed plaintiff to sue for possession within one year and if he so sued, question of title of the defendant was immaterial. Now under section  6 of  the new  Specific Relief  Act, 1963 the said period  of one  year has  been reduced  to six  months. Question  arose   whether  the   suit  by  the  dispossessed plaintiff,  after   expiry  of   the  1   year  period,  was maintainable. It  was held  by this  court that  even if the time for  filing a summary suit under Section 9 the specific Relief Act,  1877 expired,  the  dispossessed  person  could still file  a suit  for possession  on the  basis  of  prior possession. Such  a  suit  is  described  as  one  based  on ‘possessory  title’.  But  in  such  a  suit  filed  by  the dispossessed  plaintiff   beyond  the  period  specified  in section 9  of the Specific Relief Act, 1877 (or Section 6 of the 1963 Act) defendant who dispossessed the plaintiff could defend himself  by proving  title and if he proved title, he could remain  in possession. After an exhaustive examination of the law on this aspect, Hidayatullah, J. (as he then was) observed as follows (p 1173):      "When, however,  the  period  of  6      months  has  passed,  questions  of      title  can   be   raised   by   the      defendant and  if he  does so,  the      plaintiff must  establish a  better      title or fail."      The difference  between  the  right  to  possession  in summary suit  under the  specific Relief  Act and  a regular suit based  on ‘possessory  title’ was  explained further as follows (p.1173)      "....the right  is only  restricted      to possession  only in a suit under      Section 9  of the  specific  Relief      Act but  does not  bar  a  suit  on      prior possession  within  12  years      and title need not be proved unless      the defendant can prove one".      On the  question  whether  the  defendant,  inspite  of dispossessing the plaintiff, could, by proving title, remain in possession, it was held that the defendant could, in such a situation,  be permitted  to retain  his possession  if he proved title. It was stated that the law was so laid down in Asher vs.  Whitcock [1865  (1) QB 1] and was accepted by the House of  Lords in Perry vs. Clissold [1907 AC 73], that was also the  law applicable  in our  country and  it  was  this principle that  was engrafted into Articles 64 and 65 of the Indian Limitation  Act, 1963. The said articles were, it was held, declaratory  of the law. The following observations of Hidayatullah, J.  (as he  then was)  place the matter beyond any shadow of doubt, (p.1175, Col.1):      "1865  (1)   QB   1.   (Asher   Vs.      Whitcock) lays  down that  a person      in possession  of land  has a  good      title against  all the world except      the true  owner and  it is wrong in

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    principle for any one without title      or authority  of the  true owner to      dispossess him  and relying  on his      position as  defendant in ejectment      to   remain   in   possession"....A      defendant in  such a case must show      in himself  or  his  predecessor  a      valid legal title or...."      (name of case in brackets supplied)      On the  facts in Nair Service Society, the said Society which was  the defendant  raised a  plea  that  it  has  not dispossessed the plaintiff-respondent but that the plaintiff was dispossessed  by the  State which was the real owner. it contended further  that the  State had  put the  society  in possession, after  dispossessing  the  plaintiff.  The  High Court however,  held  that  it  was  the  Society  that  had dispossessed the  plaintiff and  not the State. This finding was accepted  by the  supreme Court.  It was  therefore held that the  suit for  possession by the dispossessed plaintiff was maintainable  even though  the  one  year  period  under section 9  of the old specific Relief Act. 1877 had expired, that the suit would then be one where title could be pleaded by the Society to remain in possession, but that the Society failed to  prove title  in itself. Nor did the Society prove any  authority   from  the  true  owner  to  dispossess  the plaintiff. The  Society  could  not,  therefore,  remain  in possession. However,  in this  Court, the  Society set  up a different root of title under a second Kuthaka - pattam (see para 33)  and with  a view to shorten further litigation, an amendment to  the  written  statement  of  the  Society  was allowed by this Court and the matter was remanded.      In the  present case before us the principles laid down in Nair  Service Society’s case are squarely applicable with this difference  namely that  inasmuch as,  - in view of our finding in  point 1,  - title  of the  defendant TTD has not been extinguished  and is  subsisting as of today in respect of the  suit property,  the  plaintiff  respondent  who  was dispossessed on  30.8.69 - but who applied for possession on 25.7.70 beyond  6 months  from date of dispossession - would not be  able to recover possession. The TTD could remain and retain its possession. We hold accordingly Point 3 in favour of the appellant.      In the  result the  Civil appeal  is  allowed  and  the judgment of  the learned Judge in Second Appeal is set aside and the  suit of  the plaintiff  for possession  (as per the amended plaint) is dismissed with costs. the stay granted in favour of  the appellant  on 27.7.1987  is  confirmed    and consequent to  the appeal  being allowed, the appellant will be entitled  to recover,  by way  of restitution,  any mesne profits deposited by it pending this appeal and withdrawn by the plaintiff.  Such recovery  by the  appellant can be made either by  encashing any subsisting bank guarantee furnished by the  plaintiff as  directed by  this Court  in its  order dated 27.7.1987  or in any other manner whatsoever by way of restitution.      Before parting  with the  case, we must also state that the  respondent-plaintiff   has  filed   certain  additional documents in  this appeal  in IA  1 of 1991 purporting to be certified copies  of Inam  Fair Register,  Inam B  Register, Resettlement Register,  Inam Title  Deed etc.  said to  have been obtained  from the  office of  the District  Collector, Chittoor bearing dates 10.4.90 and 4.5.90 etc. In that IA, a detailed counter  has been filed by the Department of Survey and Land  Records, TTD stating that on enquiry in the office of the  District Collector,  Chittoor it  was learnt that no

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such certified  copies were  issued by  that office  to  the plaintiff and that the copies are false documents and appear to have  been obtained  with the  help on his close relative one Mr.  Kumaraswamy, worker  in  the  Record  Room  of  the Collector’s office, who was closely related to the plaintiff . These  copies are  said to  be  not  true  copies  of  the originals but  contain false recitals showing a grant by the Government in favour of the plaintiff’s maternal grandfather instead of  the Deity.  The counter  filed by the Department says that  the copies  filed are  not genuine and are forged documents. No  doubt, plaintiff  filed a  rejoinder  stating that he  had applied for copies and got them but he does not know who  prepared them  and that Kumaraswamy is not related to him.      Be  that   as  it  may,  be  make  it  clear  that  the plaintiff’s  counsel   did  not  choose  to  rely  on  those documents filed  in IA 1 of 1991 before us. If he had relied upon them, we would have considered if it was a fit case for ordering an  inquiry into  the genuiness of these documents. The IA, in the circumstances, is dismissed.      In the  result, the  Civil appeal  is allowed as stated above and the IA 1 of 1991 is dismissed.